Young-of-the-year largemouth bass collected in June 2016 from Herrington Lake. The top fish exhibits scoliosis, which is a common deformity caused by selenium poisoning. The bottom fish is normal.

Selenium is a naturally-occurring element that can be toxic to wildlife in large amounts. Once it gets into a body of water it’s very difficult to eradicate. While it exists in nature, it’s also found in coal ash — the byproduct of burning coal for electricity.

And there are more than six years’ worth of documents showing contaminated water including arsenic and selenium leached from the ash pond at the E.W. Brown Power Station into groundwater and directly into Herrington Lake.

“If you look at the background deformity rate, you might find 1 out of 200 fish that has a minor fin deformity,” he said. “In comparison, in Herrington Lake, over 1 out of 10 had deformities that were manifested in these major skeletal deformities.”

Meanwhile, the state’s sampling found nine out of 10 fish tissue samples taken in 2016 from the same lake exceeded Kentucky’s fish tissue selenium criteria.

And a spokeswoman for Kentucky Utilities, which operates the Brown plant, said the utility is not certain the large amounts of selenium that regulators have found in Herrington Lake are related to the Brown plant’s coal ash.

A Corrective Action Plan

Environmental non-profits Kentucky Waterways Alliance and Sierra Club, working with Earthjustice, filed the federal lawsuit in July after a WFPL story detailed extensive pollution from the coal ash landfill at the Brown Power Station. The Brown plant — operated by Kentucky Utilities — sits right on the edge of the lake. For at least six years, contaminated water left the site and ran off into the lake. Despite remedial measures, the problem continued, according to state records.

In the plan, Kentucky Utilities is proposing a study of all the potential sources of selenium that could have affected Herrington Lake, as well as a full fish analysis. This could take until 2018 or 2019 — a delay many found unacceptable.

“Kentucky Utilities’ plan to spend months trying to determine an alternative source of the pollution impacting Herrington Lake abdicates their responsibility for cleaning up the pollution they produced at their E.W. Brown plant. The Brown plant’s coal ash ponds lie adjacent to the lake and are almost certainly responsible for the selenium, lead, and arsenic found in the lake.

KU wants to study the issue until at least 2019, which is unacceptable. KU needs to take responsibility for the environmental cleanup at Herrington Lake, and that cleanup needs to begin as soon as possible,” read one typical comment.

Kentucky Department for Environmental Protection spokesman John Mura said the state has yet to approve the corrective action plan, and he’s not sure on the timeframe. In the meantime, Kentucky Utilities has been given the go-ahead to begin their own tests of the fish in Herrington Lake.

“We are waiting on the results of further testing that is being done out there before we proceed,” Mura said.

‘Herrington Lake is contaminated’

Kentucky Utilities has requested a judge dismiss the lawsuit filed by Earthjustice, saying the issue is adequately addressed by the corrective action plan pending state approval.

Earthjustice attorney Thom Cmar is opposing KU’s motion to dismiss the lawsuit. The lawsuit and the corrective action plan are operating on separate tracks, and he said if the plan was beefed up a bit, it might address some of his concerns.

“If we could resolve this outside of a lawsuit, that would be better,” Cmar said. “But the only way that I can see that happening would be if the company was willing to take responsibility for its contributions to the very serious contamination we’ve seen in the lake and offer to take much more meaningful steps both to stop further pollution and clean up the pollution that’s already out there.”

Chris Whelan, spokeswoman for KU, said the company has begun its own fish sampling. She said other reports, like those issued by the Kentucky Division of Fish and Wildlife, contradict biologist Dennis Lemly’s findings.

“What we’re seeing from all the other reports is there’s no issue with the fish,” she said. “[The Division of Fish and Wildlife’s] annual performance report from 2016 says the fish are fine, and their 2017 fishing forecast says the fish are rated fair to excellent.”

Lemly said that makes sense — his study focused on small, young fish, while Fish and Wildlife looks at larger and older fish that anglers would target. He said the prevalence of skeletal deformities among the fish he sampled suggests the pollution has been an issue for a while — long enough to cause what are essentially birth defects.

“That gets back to the mechanism by which selenium poisons fish,” Lemly said. “It doesn’t poison the little fish after they hatch out of their eggs. It occurs because the adult fish consume high selenium in their diet. In other words, the selenium gets into the food chain.”

In the meantime, Lemly said selenium is nearly impossible to remove from a water body as large as Herrington Lake.

“Herrington Lake is contaminated,” he said. “And no matter if E.W. Brown stopped their discharge today, the selenium that is in that lake is going to continue to cause problems and accumulate in those fish and potentially poison them for a long, long time.”

The case in U.S. District court is currently awaiting a ruling from Judge Danny Reeves on Kentucky Utilities’ motion to dismiss.